The Committee of Ministers, under the terms of Article 54
(art. 54) of the Convention for the Protection of Human Rights and
Fundamental Freedoms (hereinafter referred to as "the Convention"),
Having regard to the judgment of the European Court of Human
Rights in the Burghartz case delivered on 22 February 1994 and
transmitted the same day to the Committee of Ministers;
Recalling that the case originated in an application against
Switzerland lodged with the European Commission of Human Rights on
26 January 1990 under Article 25 (art. 25) of the Convention by a
married couple, Mr Albert Burghartz, a Swiss and German national,
and Ms Susanna Burghartz, a Swiss national, and that the Commission
declared admissible the complaint that the first applicant was
denied the right to put his family name in front of his wife's,
which he had taken as his family name after the marriage, whereas
a woman in the same situation who had taken the husband's name as
her family name could put her previous name before the family name;
Recalling that the case was brought before the Court by the
Commission on 11 December 1992 and by the Government of the Swiss
Confederation on 8 January 1993;
Whereas in its judgment of 22 February 1994 the Court:
- dismissed, unanimously, the government's preliminary
objections;
- held, by six votes to three, that Article 8 (art. 8) applied
in this case;
- held, by five votes to four, that there had been a breach of
Article 14 taken together with Article 8 (art. 14+8);
- held, unanimously, that it was unnecessary to determine
whether there had also been a breach of Article 8 (art. 8) taken
alone;
- held, unanimously, that Switzerland was to pay the
applicant, within three months, 20 000 Swiss francs in respect of
costs and expenses;
- dismissed, unanimously, the remainder of the claim for just
satisfaction;
Having regard to the Rules adopted by the Committee of
Ministers concerning the application of Article 54 (art. 54) of the
Convention;
Having invited the Government of the Swiss Confederation to
inform it of the measures which had been taken in consequence of
the judgment of 22 February 1994, having regard to its obligation
under Article 53 (art. 53) of the Convention to abide by it;
Whereas, during the examination of the case by the Committee
of Ministers, the Government of the Swiss Confederation gave the
Committee information about the measures taken in consequence of
the judgment, which information appears in the appendix to this
resolution;
Having satisfied itself that on 7 March 1994 the Government of
the Swiss Confederation paid the applicants the sum provided for in
the judgment of 22 February 1994,
Declares, after having taken note of the information supplied
by the Government of the Swiss Confederation, that it has exercised
its functions under Article 54 (art. 54) of the Convention in this
case.
Appendix to Resolution DH (94) 61
Information provided by the Government of the Swiss
Confederation during the examination of the Burghartz
case by the Committee of Ministers
On 1 July 1994, an amendment to Section 177.a of the Civil
Status Ordinance entered into force of which the first
sub-paragraph reads as follows:
"The fiancée may declare to the officer of the Civil Register
that she wishes to conserve, after the marriage, the name
which she has borne until then, followed by the family name
(Article 160, sub-paragraphs 1 and 2 of the Civil Code). The
fiancé has the same possibility when both fiancés request to
be allowed to bear, after the marriage, the name of the wife
as family name (Article 30, sub-paragraph 2, of the Civil
Code)."
A transitional provision, Section 188.i, stipulates as
follows:
"If the fiancés have been authorised prior to 1 July 1994 to
have the name of the wife as family name as from the date of
marriage (Article 30, sub-paragraph 2, of the Civil Code in
its version of 5 October 1984), the husband may, until
30 June 1995, declare to the officer of the Civil Register
that he wishes to add the name he bore before marriage before
the family name.
A man born in Switzerland who bears the family name of his
wife in accordance with foreign law may also make such a
declaration."
The applicant has availed himself of the possibility offered
by the transitional provisions and bears today officially the name
of Schnyder Burghartz. Accordingly, the government considers that
his request for a reopening of the proceedings before the Federal
Court has become devoid of purpose and that the situation is the
same with regard to his request to the cantonal authorities to be
allowed to change his name in conformity with Article 30,
sub-paragraph 1, of the Civil Code.
In the light of the foregoing, the Government of Switzerland
considers that it has fulfilled the obligations imposed on it under
Article 53 (art. 53) of the European Convention on Human Rights.
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